Tag Archive for: jury

Last month I discussed observations about a seminar during a recent local Bench and Bar conference hosted by the Hillsborough County Bar Association. Among the many excellent seminars, one stood out to me in particular: a panel of jurors who had served on various civil trials in Hillsborough County. They had returned for the conference to discuss what they had considered important in the trials they had participated in and why they had come to the conclusions they did. As they discussed the observations, evidence and arguments they found most persuasive in reaching their verdicts, I was reminded that success in litigation and trial is as much an art as it is a calculated presentation of the evidence available to counsel and their client. The following is part 2 of this blog post, and now we will explore how jurors are persuaded by evidence and which types of evidence are most successful in our increasingly fast passed society.

Part 2: What Kind of Evidence Do Juries Find Persuasive?

When a jury walks into the box, they bring with them cognitive shortcuts, impressions of credibility, and narrative expectations. Persuasion in a jury trial is not simply about piling on more evidence; rather, it is about how the evidence is presented, which evidence resonates most, and who presents it.

Evidence Hierarchies from the Juror’s Lens

In empirical and mock-juror studies, some evidence types consistently rise to the top of juror credibility rankings. For example, in a widely cited study, Kimberly Schweitzer and Narina Nuez found that mock jurors ranked DNA evidence as the most compelling type of proof, followed by fingerprints, weapons, crime-scene photos, video recordings, gunshot residue, and bodily fluids.[1] In this study, expert testimony and eyewitness testimony was considered the least reliable. This is fascinating, considering that many cases are developed and tried based on the evidence that witnesses, especially expert witnesses, provide. Other work shows that jurors can differentiate between strong and weak versions of forensic evidence, especially when properly contextualized (e.g. DNA matching with low error bounds).[2] However, jurors are also susceptible to overconfidence in complex scientific or forensic claims. Some research warns that jurors may equate “technical” with “true,” even when error rates or method limitations exist.[3] Moreover, the so-called “Wells effect” warns of a psychological gap: jurors may resist pure statistical or “naked probability” evidence unless it is woven into a fact narrative they can grasp.[4] In addition, the “CSI effect” jurors, influenced by popular TV crime dramas, may expect or overvalue forensic and scientific evidence—even demanding it where none exists.[5]

In short: jurors love tangible, concrete, scientific or visual evidence (DNA, fingerprint, high-quality video) built into a compelling story. But they are not strictly rational Bayesian calculators; they evaluate through narrative context, credibility, and coherence of theory and argument as presented by the attorneys.

Live Testimony and Video (or Recorded) Testimony

Live testimony and recorded (or video) testimony each carry advantages and pitfalls, and jurors respond differently to them.

Live Testimony

  • Demeanor, confidence, and presence: Jurors heavily weigh the demeanor of a live witness—confidence, eye contact, and composure. Indeed, some studies suggest jurors’ perception of witness confidence often trumps consistency in their credibility judgments.[6] But researchers caution- demeanor is a poor predictor of truthfulness. A polished liar can appear credible while a truthful but anxious witness may falter. It is worthwhile to examine the jury’s judgement hierarchies about the behavior of others during void dire to determine how strictly they will judge the credibility of a witness based on their demeanor or attire.
  • Cross-examination exposure: Live witnesses can be tested on inconsistencies, impeached, challenged on tone, and forced into unplanned responses—this dynamic can sway jurors based on how well defense or plaintiff counsel handles live cross examination. In addition, jurors must rely on their own short-term memory and note-taking; sometimes they lose track of details over the course of testimony and deliberation.

Video or Recorded Testimony

Use of video testimony or deposition excerpts can provide a level playing field (no dress, lighting, physical presence variations) and preserve consistent delivery. For witnesses who are unavailable in person (e.g. due to health, security or travel issues), video gives the jury a chance to see facial expressions, pauses, and tone- rather than just reading a transcript. Some empirical work suggests that whether testimony is delivered live or by video does not always significantly impact liability judgments, especially if the substance and narrative remain the same.[7] However, jurors may view video testimony as less immediate, less under oath oversight, or less “real”—they may discount it slightly unless the video is compelling in quality and presentation. From a practical standpoint, a hybrid approach sometimes works: live testimony when possible, and strategically selected video clips or demonstratives to reinforce key moments.

Demonstrative Evidence, Audio-Visual Aids, and Storytelling

Demonstratives and audio/visual aids are powerful tools to transform abstract or complex data into digestible visuals, reinforce themes, and invite juror self-persuasion. During the bar conference, jurors on the panel repeatedly mentioned how persuasive visual aids were in helping them come to their particular decision about the case. Further, in an era where the fight for our attention is ongoing and the average attention span is a mere 8 seconds or so, it is important to present evidence in all of the forms and formats available to grab AND maintain the jury’s attention – both auditory and visual.[8]

“Persuasion science” tells us that people are more convinced by conclusions they arrive at themselves rather than those they are told. Thus, letting jurors infer from a chart, animation, or timeline can be more powerful than walking them through each step verbally.[9] Narrative aids such as timelines, maps, accident reconstructions, simulations, animations, and graphic overlays help jurors integrate evidence into a coherent story. A good demonstrative “shows” what the attorney wants jurors to see, not just hear. Overly verbose or detailed demonstrations can distract or antagonize jurors. One article argues: “If there is demonstrative evidence that can tell a story, show it … with only as much description as is needed so they know what they’re looking at.”[10] Jurors are processing large amounts of testimony and facts. Visual aids can relieve the cognitive load, enabling jurors to “see the forest” as well as “see the trees.” As courts increasingly confront algorithms, bullet-matching analyses, or probabilistic models, the way demonstratives present uncertainty and error rates matters. Ultimately, when designed cleanly, anchored to the fact narrative, and used sparingly as “jury aides” rather than substitutes for persuasion, demonstrative materials can be among the most convincing tools in the trial lawyer’s kit.

How Jurors View Attorneys — Why Preparation & Professionalism Matter

Evidence matters, but the messenger matters too. How jurors perceive attorneys—credibility, competence, demeanor—can tip close cases. During the conference, this was another topic that came up again and again with the jurors present- they mentioned how they trusted attorneys that appeared prepared, composed and polished. And they ignored the arguments of attorneys that appeared unprepared, confused or disheveled. While this may seem unfair, it is important to understand the playing field one finds themselves in and understand that they will be judged by the rules on that field.

The Impact of Attorney Perceptions

In a study of 572 jurors, Wood, Sicafuse, Miller & Chomos found that jurors’ positive perceptions of attorneys’ evidence presentation and preparedness predicted favorable verdicts.[11] Interestingly, for prosecuting/plaintiff attorneys, a favorable closing statement perception correlated with verdict success; but for defense attorneys, a favorable opening sometimes correlated with less success—suggesting tactical nuance. [12]Jurors’ perceptions of attorney sincerity had complex correlations: in that study, higher perceived sincerity of the prosecution was negatively correlated with favorable verdicts—perhaps because jurors distrust over-polished sincerity.[13]

A qualitative juror survey in Baylor’s “Professionalism and Advocacy at Trial” found that jurors valued attorneys who believed in their case, understood both strengths and weaknesses, brought up incriminating facts before opposing counsel did, and were honest with the jury at all times.[14] The expression of anger or emotional intensity is double-edged: a 2023 study showed that specially scripted “angry” closing statements (authentic or inauthentic) affected juror decisions. The effect interacted with attorney gender, highlighting that emotional expression must be calibrated.[15]

In sum: the attorney is not invisible. Jurors assess: Are you confident yet humble? Prepared but flexible? Sincere? Respectful of the jury? These are all of the questions and thoughts that are running through the jury’s mind. Thus, an overreaching expression or sloppy presentation can backfire.

Preparation, Professionalism & Persuasion

Given that jurors form impressions early and carry them forward, trial counsel should treat professionalism and preparation as persuasion tools that are at their disposal:

  1. Know your audience: Understand the demographic and attitudinal profile of jurors: what narratives, analogies, or themes will resonate? Use focus groups and mock jurors in your preparation.
  2. Meticulous rehearsal: Script and rehearse openings, transitions, and key questions—not to memorize, but to internalize rhythm and clarity. Review demonstrative evidence and/or aides under multiple lighting/media conditions to test their applicability and use. It is important to attempt to prepare for any technological issues as well- a delay in getting the PowerPoint or computer to work can not only frazzle nerve but also hint to the jury lack of preparation.
  3. Visual consistency and stylistic coherence: Use a unified aesthetic (fonts, colors, visual metaphor) across slides, graphs, charts, timelines, maps. Disjointed visuals fragment attention.
  4. Courtroom demeanor and juror respect: Dress and comport yourself with professionalism- neither overly stiff or casual. The jury will be expecting respect between the attorneys and also to themselves. Use juror-friendly language: avoid jargon, explain briefly, and periodically remind them what they are supposed to remember.
  5. Ethical credibility: Avoid exaggeration or overstatement. Jurors often “catch” misstatements or inconsistent claims- even minor ones. Once they catch something like this, it can lead them to not trust what the attorney is saying or presenting after. One of my mentors told me once to “Never issue a check with your mouth that you can’t cash after closing argument.” That phrase stayed with me during many a trial. Discussing weaknesses in your case strategically (e.g. in opening) by weaving them into your narrative so jurors see you are not hiding anything.

Conclusion

Persuading a jury is a multidimensional craft: you must present strong evidence, package it in digestible visual and auditory narratives, and deliver it through a messenger jurors find credible and respectful. Live testimony, video, and demonstratives each have roles; the key lies in integrating them into a coherent, juror-friendly narrative rather than dumping raw data. A polished, professional attorney who commands respect, reduces juror cognitive load, and encourages juror self-persuasion can often convert a “close” case into a winning outcome.

 

[1] What Evidence Matters to Jurors? The Prevalence and Importance of Different Homicide Trial Evidence to Mock Jurors;  Kimberly Schweitzer and Narina Nuñez; https://pmc.ncbi.nlm.nih.gov/articles/PMC6818361/

[2] Understanding juror perceptions of forensic evidence: investigating the impact of case context on perceptions of forensic evidence strength; Lisa L Smith, Ray Bull, Robyn Holliday; https://pubmed.ncbi.nlm.nih.gov/21210812/

[3] Juror comprehension of forensic expert testimony: A literature review and gap analysis; Heidi Eldridge; https://www.sciencedirect.com/science/article/pii/S2589871X19300683?

[4] Elsevier’s Dictionary of Psychological Theories, edited by J.E. Roeckelein, 2006; citing G.L. Wells theory, (1978); https://books.google.com/books?id=1Yn6NZgxvssC&pg=PA627#v=onepage&q&f=false

[5] Willing, Richard: “‘CSI effect’ has juries wanting more evidence,” August 5, 2004, USA Today;  http://usatoday30.usatoday.com/news/nation/2004-08-05-csi-effect_x.htm%7Cpublisher=USA Today

[6] The Changing Science on Memory and Demeanor – and What It Means for Trial Judges, Mark Bennett; Vol. 101 No. 4 (2017); https://judicature.duke.edu/articles/the-changing-science-on-memory-and-demeanor-and-what-it-means-for-trial-judges/

[7] The effect of expert witness testimony and complainant cognitive statements on mock jurors’ perceptions of rape trial testimony, Nathan Ryan and Nina Westera, Psychiatry, Psychology and Law, June 2018; https://pmc.ncbi.nlm.nih.gov/articles/PMC6818329/

[8] Speaking of Psychology with Gloria Marks, February 2023; https://www.apa.org/news/podcasts/speaking-of-psychology/attention-spans; Stolen Focus: Why You Can’t Pay Attention by Johann Hari, 2024, https://stolenfocusbook.com/

[9] Persuasion Science for Trial Lawyers, December 2021, John Blumberg; https://www.persuasion-science.com/; https://law.temple.edu/aer/2022/10/24/persuasion-science-for-trial-lawyers/

[10] The psychological science of jury persuasion; Plaintiff Magazine, November 2017, John Blumberg; https://plaintiffmagazine.com/recent-issues/item/the-psychological-science-of-jury-persuasion

[11] The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict

by Steve M. Wood, Lori Sicafuse, Monica K. Miller, Ph.D., and Julianna C. Chomos; The Jury Expert, January 2011, https://thejuryexpert.com/2011/01/the-influence-of-jurors-perceptions-of-attorneys-and-their-performance-on-verdict

[12] The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict

by Steve M. Wood, Lori Sicafuse, Monica K. Miller, Ph.D., and Julianna C. Chomos; The Jury Expert, January 2011, https://thejuryexpert.com/2011/01/the-influence-of-jurors-perceptions-of-attorneys-and-their-performance-on-verdict

[13] The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict

by Steve M. Wood, Lori Sicafuse, Monica K. Miller, Ph.D., and Julianna C. Chomos; The Jury Expert, January 2011, https://thejuryexpert.com/2011/01/the-influence-of-jurors-perceptions-of-attorneys-and-their-performance-on-verdict

[14] Professionalism and Advocacy at Trial – Real Jurors speak in detail about the performance of their advocates; Baylor Law Review, March 2012, Mitchell J. Frank* & Dr. Osvaldo F. Morer; https://www.baylor.edu/content/services/document.php/176863.pdf

[15] The influence of attorney anger on juror decision making, Samuel Choi, Narina Nuñez, Benjamin M Wilkowski, Psychiatry, Psychology and Law, February 2022; https://pmc.ncbi.nlm.nih.gov/articles/PMC10281436

I recently had the good fortune to attend the Hillsborough County Bar Association’s Annual Bench and Bar Conference in early October. Among the many excellent seminars, one stood out to me in particular: a panel of jurors who had served on various civil trials in Hillsborough County. They had returned for the conference to discuss what they had considered important in the trials they had participated in and why they had come to the conclusions they did. As they discussed the observations, evidence and arguments they found most persuasive in reaching their verdicts, I was reminded that success in litigation and trial is as much an art as it is a calculated presentation of the evidence available to counsel and their client. In this two-part blog post, we will explore how nonverbal communication from the attorneys and the parties can influence litigation from the opening stages of a case through to the verdict and the types of evidence juries find most compelling.

Part 1: The Art and Science of Nonverbal Communication

Quick Thinking, Nonverbal Command, and the Advocate’s Presence

When most lawyers think about persuasion in litigation or trial, they focus on arguments, evidence, and the precise words spoken to the Court. But persuasion operates on more than just the conscious, rational level. Body language and subconscious cues influence parties, jurors, and even judges, sometimes more powerfully than a closing argument. Albert Mehrabian’s foundational research in communication theory is often cited for the idea that the majority of meaning in face-to-face communication comes not from words, but from tone and body language.[1]  Additional studies have confirmed that nonverbal cues shape how listeners perceive credibility, confidence, and trustworthiness.[2] Becoming aware of how you are communicating with others nonverbally can make a difference in how you (and your arguments) are perceived.

Malcolm Gladwell’s Blink expands on this phenomenon, describing how people form intuitive judgments in seconds—a process he calls “thin-slicing.”[3] In the courtroom, jurors are continually “thin-slicing” advocates, witnesses, and parties based on fleeting cues: a pause before answering, a crossed arm, a flicker of irritation. These are the “tells” that their subconscious minds are looking for to confirm or discredit their opinions and/or pre-conceived notions. Once formed, these impressions are remarkably resilient. Trial lawyers who understand this can use deliberate posture, pacing, and tone to project credibility and calm even when under stress.

In Outliers, Gladwell adds that elite performance often arises not from innate genius but from deliberate, repeated quality practice.[4] Quick thinking in trial, the ability to object smoothly, pivot on cross, or adapt to a judge’s question, depends on hours of structured rehearsal. The advocate who practices under pressure gains the intuitive mastery to make rapid decisions that feel instinctive to the jury.

Philip Meyer’s Storytelling for Lawyers offers a complementary insight: jurors interpret evidence through the story that feels most coherent.[5] Cognitive biases push people toward narratives that “fit.” When facts are organized into a clear, emotionally and visually consistent story, jurors experience less cognitive dissonance and are more likely to find the storyteller credible. Lawyers should therefore align their nonverbal communication with the story they are telling: calm tone for reason, measured movement for logic, warmth for empathy. Similarly, Brian Johnson and Marsha Hunter’s The Articulate Advocate reminds us that nonverbal delivery is the final layer of persuasion.[6] Vocal cadence, breathing, and stance all signal composure. Jurors (and other decision makers) equate these physical cues with sincerity and preparation, which in turn reinforce their subconscious judgment that the advocate is trustworthy. A trial lawyer’s ability to control their own body language, and read others’, can create subtle but real advantages:

  • Confidence and credibility. Research in legal psychology finds that refined appearance, upright posture, steady eye contact, and measured speech increase perceptions of trustworthiness.[7]
  • Storytelling through gesture. Gestures that mirror or emphasize verbal arguments help jurors retain key points.[8]
  • Detecting deception. While no signal guarantees truth or falsehood, inconsistencies between verbal statements and body language often alert jurors and judges to credibility issues.[9]

Persuasion begins long before closing argument. It begins in milliseconds- with a glance, a gesture, or the quiet confidence that jurors interpret as truth.

Subconscious Thinking and Cognitive Biases

Body language operates alongside subconscious mental shortcuts, or cognitive biases, that affect decision-making. Research by Daniel Kahneman in Thinking, Fast and Slow, and behavioral economists highlights how people rely on heuristics, availability, anchoring, confirmation bias, when making judgments.[10]

  • Authority bias: Jurors may unconsciously attribute more weight to testimony from a confident expert who appears composed and authoritative.
  • Halo effect: A likable party or witness (through warmth in demeanor or open posture) can influence jurors to see their testimony as more credible.
  • Anchoring: Discussion of case value in jury selection can subconsciously “anchor” the jury’s sense of reasonable outcomes, regardless of counterarguments.

Anchoring in Depositions and Testimony

Anchoring doesn’t just occur at the trial stage; it plays a powerful role during depositions and live testimony. Anchoring occurs when the first figure, fact, or framework presented exerts an outsized influence on subsequent perceptions, even if it is arbitrary.[11]

  • Depositions. When an attorney introduces an early numerical estimate (e.g., damages, timelines, percentages of fault), it can subtly set the reference point for the witness, opposing counsel, and even the judge reviewing the transcript later. Research in negotiation shows that first offers, even aggressive ones, tend to pull final outcomes closer to the anchor.[12]
  • Witness testimony. A plaintiff testifying that their medical bills were “over $100,000” anchors jurors, even if the defense later emphasizes a smaller reimbursable portion. Similarly, an expert who explains an injury will reduce life expectancy “by at least 15 years” has set a mental baseline that jurors carry into deliberation.
  • Cross-examination. Defense lawyers may use anchoring by posing questions with embedded figures: “Would you agree that many back injuries resolve within six months?” Even if the witness disputes the timeframe, the six-month figure becomes a subconscious benchmark.

Effective trial lawyers focus on tactics such as:

  • Set the anchor first whenever possible, framing damages or timelines in ways favorable to their client.
  • Challenge anchors overtly. Jurors are less likely to be unconsciously influenced if opposing counsel explicitly calls out an anchor as misleading or speculative.
  • Train witnesses. Prepare clients to avoid unintentionally reinforcing harmful anchors during deposition.

Anchoring operates quietly, but once established, it is notoriously difficult to dislodge, making it one of the most potent psychological tools in the trial lawyer’s arsenal.

Florida Courts and Subconscious Persuasion

Florida case law shows that courts are alert to the power of both nonverbal behavior and anchoring, even if they rarely use psychological terms.

  • In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court noted that subtle cues, such as prosecutorial comments or gestures, can create unfair prejudice, underscoring how easily subconscious impressions can affect juror perceptions.
  • Florida appellate courts have also cautioned against “golden rule” arguments, which are essentially emotional anchors inviting jurors to put themselves in the plaintiff’s position (See Metropolitan Dade County v. Zapata, 601 So. 2d 239 (Fla. 3d DCA 1992)).
  • Federal courts sitting in Florida recognize similar concerns: in U.S. v. Schlei, 122 F.3d 944 (11th Cir. 1997), the court highlighted how prejudicial framing can sway juries beyond the evidence presented.

Beyond published opinions, Florida’s trial practice CLEs frequently emphasize the importance of demeanor, credibility, and the way questions are framed, echoing research on subconscious persuasion. For litigators practicing in Florida, this means being attuned not only to statutes and case law, but also to the subtle cues picked up by Florida jurors, who often come from diverse cultural and linguistic backgrounds. Body language and anchoring techniques that resonate in one county may land quite differently in another part of the state.

Influence on Judges and Opposing Parties

Even in bench trials, nonverbal cues matter. Judges, like all decision makers, are also subject to subconscious influences. Research shows judges, despite legal training, are not immune to cognitive biases like anchoring or framing effects.[13] In mediation or settlement negotiations, attorneys who display calm, open body language can reduce conflict intensity and promote trust. Subtle mirroring and adopting a posture similar to the opposing party has been shown to increase rapport and willingness to compromise.[14]

Practical Tips for Lawyers

  1. Control your posture and eye contact. Stand confidently, avoid crossing arms, and engage jurors or the judge with steady but not aggressive eye contact.
  2. Be aware of the influence of clothing and organization of materials for trials or hearings. Decision makers are looking at every single aspect they can, whether they realize it or not. This will include your clothing, physical appearance and even how organized your table might be in the courtoom. Refined and neat appearances often subtly suggest confidence and trustworthiness.
  3. Use intentional gestures. Don’t fidget—use your hands to underscore important points in your argument.
  4. Be mindful of micro-expressions. Jurors often sense disdain, irritation, or nervousness in a split second.
  5. Prepare your client and witnesses. Jurors notice when witnesses look evasive, avoid eye contact, or fidget. Roleplay in advance to help them feel composed.
  6. Be aware of subconscious framing. The order in which you present evidence, the first number you introduce, and the way you label parties (“plaintiff” vs. “injured mother”) can anchor perceptions powerfully.
  7. Use anchoring strategically in deposition. Be deliberate with the numbers you put on the record, knowing they’ll stick with both jurors and judges later.

Litigation is a battle that is composed not only of stories, facts, and law- but also of subtle signals and subconscious impressions. By integrating lessons from psychology, communication science, and behavioral economics, lawyers can sharpen their persuasive edge in ways that go beyond the transcript. As Daniel Kahneman, Malcolm Gladwell, and many other scholars remind us, much of human judgment is fast, intuitive, and subconscious. In litigation and trial, that means the decision makers, whether it is a judge, jury or opposing counsel and their client, may have made their decision long before you even imagined it was possible. These decisions were not made after the closing argument, but instead are based on the signals they pick up from every nod, glance, and gesture you provide through the litigation process and in the courtroom. Stay tuned for more as we dive into our second part to this blog post: where we will consider what evidence is most persuasive in litigation and trial and why how it is presented is often the most important aspect.

 _________________________________

REFERENCES & BIBLIOGRAPHY

[1] Silent Messages, Albert Mehrabian, 1971

[2]Burgoon, Guerrero & Floyd, Nonverbal Communication, 2016

[3] Blink: The Power of Thinking Without Thinking, Malcolm Gladwell, 2005

[4] Outliers, Malcolm Gladwell, 2008

[5] Storytelling for Lawyers, Philip N. Meyer, 2014

[6] The Articulate Advocate, Marsha Hunter, Brian Johnson, 2016

[7] Detecting Lies and Deceit, A. Vrij,  2008; What Every Body is Saying, Joe Navarro and Marvin Karlins, 2008; Cues: Master the Secret Language of Charismatic Communication, Vanessa Edwards, 2022

[8]  “How Gesture Promotes Learning and Thinking,” Goldin-Meadow, Trends in Cognitive Sciences, 2003

[9] Detecting Lies and Deceit, A. Vrij,  2008; What Every Body is Saying, Joe Navarro and Marvin Karlins, 2008; Cues: Master the Secret Language of Charismatic Communication, Vanessa Edwards, 2022

[10] Thinking, Fast and Slow, Daniel Kahneman, 2011

[11] “Judgment Under Uncertainty: Heuristics and Biases”, Tversky & Kahneman,  Science, 1974; Anchoring Effect in Real Litigation: An Empirical Study, Yun-chien Chang, Kong-Pin Chen, Chang-Ching Lin, Chicago Unbound, University of Chicago Law School, 2016

[12] “First Offers as Anchors,” Adam D. Galinsky and Thomas Mussweiler, Journal of Personality and Social Psychology, 2001

[13] “Inside the Judicial Mind,” Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich, Cornell Law Review, 2001

[14] “The Chameleon Effect,” T.L. Chartrand , J.A. Bargh, Journal of Personality and Social Psychology, 1999